# C_2021088EN.01000701.xml

| 15.3.2021 | EN | Official Journal of the European Union | C 88/7 |
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15.3.2021

EN

Official Journal of the European Union

C 88/7

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Judgment of the Court (First Chamber) of 27 January 2021 (requests for a preliminary ruling from the Gerechtshof te Amsterdam, Gerechtshof Den Haag — Netherlands) — Dexia Nederland BV v XXX (C-229/19), Z (C-289/19)

(Joined Cases C-229/19 and C-289/19) (1)

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Articles 3(1), 4(1) and 6(1) - Assessment of the unfairness of contractual terms - Term fixing in advance the creditor’s potential advantage in the event of termination of the contract - Significant imbalance in the parties’ rights and obligations under the contract - Date on which the imbalance must be assessed - Finding that a term is unfair - Consequences - Replacement of an unfair term with a supplementary provision of national law)

(2021/C 88/07)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam, Gerechtshof Den Haag

Parties to the main proceedings

Applicant: Dexia Nederland BV

Defendants: XXX (C-229/19), Z (C-289/19)

Operative part of the judgment

| 1. | The provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term in a risk-weighted contract concluded between a seller or supplier and a consumer, such as share leasing agreements, must be regarded as unfair, since, having regard to the circumstances surrounding the conclusion of the contract in question and by reference to the date of its conclusion, that term may create a significant imbalance between the rights and obligations of the parties during the performance of the contract, even though that imbalance could occur only if certain circumstances were to arise and, in other circumstances, that term could even benefit the consumer. In those circumstances, it is for the referring court to ascertain, in the light of the circumstances attending the conclusion of the contract, whether a term fixing in advance the advantage which the seller or supplier is to enjoy in the event of premature termination of the contract was, from the time that contract was concluded, liable to create such an imbalance. |
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1.

The provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term in a risk-weighted contract concluded between a seller or supplier and a consumer, such as share leasing agreements, must be regarded as unfair, since, having regard to the circumstances surrounding the conclusion of the contract in question and by reference to the date of its conclusion, that term may create a significant imbalance between the rights and obligations of the parties during the performance of the contract, even though that imbalance could occur only if certain circumstances were to arise and, in other circumstances, that term could even benefit the consumer. In those circumstances, it is for the referring court to ascertain, in the light of the circumstances attending the conclusion of the contract, whether a term fixing in advance the advantage which the seller or supplier is to enjoy in the event of premature termination of the contract was, from the time that contract was concluded, liable to create such an imbalance.

| 2. | The provisions of Directive 93/13 must be interpreted as meaning that a seller or supplier which has imposed on a consumer a term declared unfair and, consequently, void by the national court cannot claim the statutory compensation provided for by a supplementary provision of national law which would have been applicable in the absence of that term where the contract is capable of continuing in existence without that term. |
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2.

The provisions of Directive 93/13 must be interpreted as meaning that a seller or supplier which has imposed on a consumer a term declared unfair and, consequently, void by the national court cannot claim the statutory compensation provided for by a supplementary provision of national law which would have been applicable in the absence of that term where the contract is capable of continuing in existence without that term.

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(1)  OJ C 187, 3.6.2019.

OJ C 280, 19.8.2019.

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